Excerpt: ...on on both the elements of breach of duty and causation. BREACH OF DUTY The School District acknowledges that California law imposes upon school districts a duty to carefully supervise students while they are on school premises during the school day, and that school districts may be held liable for injuries caused by the failure to exercise such care. (Memorandum of Points and Authorities, page 5, lines 21‐23) The School District contends it di...

Excerpt: ... merit. The Kuemeller Defendants' special motion to strike pursuant to CCP Section 425.16 is very similar to the special motion to strike made by Defendant Polizzis and their Trusts. The reason for this is obvious. The Kuemmeler Defendants are not alleged to have any personal criminal liability. (Cmplt, paragraph 24(a)) The Kuemmeler Trust owns 21.7% of the property at issue in the case, 389 South, in Alamo, California 94507. (Cmplt, paragraphs 7...

Excerpt: ...ariety of arguments in support of its motion. It argues that plaintiff's expert does not have knowledge of current standards and practices. It argues that it had no duty to provide any records and that John Muir could have accessed the records electronically. It argues that Ewing had no authority to request medical records and implies she was negligent in not ensuring her request had been met. It argues that plaintiff was negligent. All these arg...

Excerpt: ...her roof and then migrated into the interior, damaging the framing and her personal property. Pacific provided plaintiff a policy of insurance for the home. This dispute turns on whether the policy provides coverage for her losses. II. Motion for Summary Judgment Plaintiff's claims are for breach of contract and breach of the covenant of good faith and fair dealing. Pacific moves for summary judgment on the grounds that the undisputed evidence sh...

Excerpt: ...n is denied as to the disparate facilities claim, with the caveats stated below. The basis for this ruling is as follows. A. Preliminary Matters. 1. Attorney Fees. Plaintiff filed late and defective opposition papers on October 5 and October 11, 2018. At the initial hearing on October 18, the Court gave plaintiff the option of allowing defendant's motion to be treated as unopposed, or continuing the hearing and requiring plaintiff's counsel to pa...

Excerpt: ...a separate action for fraudulent transfer. The Court makes no finding on the issue of whether plaintiff's motion for leave to amend was properly served. The Court exercises its inherent judicial power to reconsider its previous order. (See, Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1249.) Upon further review of plaintiff's motion for leave to amend, the Court now finds that the motion should not have been granted...

Excerpt: ...t (“EBRPD”)'s demurrers without leave to amend. The motion is made pursuant to Code of Civil Procedure section 663. PG&E and EBRPD filed a joint opposition. For the following reasons, Petitioners' motion is denied. Analysis Motion to Vacate Judgment As a threshold issue, PG&E argues that a § 663 motion is unavailable here, relying primarily on Payne v. Rader (2008) 167 Cal.App.4th 1569. Payne held that “a section 663 motion does not lie to...

Excerpt: ... damages and calculates interest at the legal rate from the date of the original judgment, May 13, 2008. Background Plaintiff Lola Davis filed a complaint in 2007 against the Cityfed Capital Inc., Derek Wheat and Victor Gess. She alleged that the individual defendants agreed to start a company with her, but in the end the company went nowhere and Plaintiff was the only one to fund it. She sued the defendants for breach of contract, interference w...

Excerpt: ...low the Motion is denied without prejudice. This is a personal injury matter involving a pool‐ diving incident resulting in Plaintiff's broken neck. Plaintiff was a high‐school senior when he attended a graduation party at CrossDefendants' home. Plaintiff dove into the Cross‐Defendants' pool and broke his neck when Plaintiff's head hit the pool floor. As a result of that injury, Plaintiff is now a quadriplegic. Plaintiff filed a complaint a...

Excerpt: ...jurisdictional prerequisite to a claim‐relief petition. When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779, internal citations omitted.) Accrual for this purpose is the same as accrual for purpose of the statute of limitati...

Excerpt: ...ranted for the reasons stated below. Personal Jurisdiction California courts may exercise jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of this state or of the United States.” (CCP § 410.10.) The exercise of personal jurisdiction over a nonresident defendant comports with the Constitutions of California and the United States “ ‘if the defendant has such minimum contacts with the state that the assert...

Excerpt: .../06/18 ‐ 5 ‐ and/or make such orders concerning the proceedings therein as may tend to avoid unnecessary costs and delay. See CCP Section 1048(a). The court does so here. COMMON QUESTIONS OF LAW OR FACT 1. Tcheong, LLC v. Peter Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant, Selina Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant (C17‐00563): This case was filed on April 6, 2017. Plaintiff...

Excerpt: ...ons, Inc. (“Lucky”), an Idaho corporation (collectively, “Plaintiffs”). Plaintiffs filed a request to file an extended page length in their opposition. That request is granted. No reply was filed. By way of the Motion, Defendants seek to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORN...

Excerpt: ...event sexual harassment. Plaintiff Tonya Guice was hired as a full‐time security guard in February 2017. When Plaintiff was hired, she was provided a copy of Defendant's Arbitration Policy and Agreement as a mandatory condition of her hiring. The Agreement contained the following language, “By accepting and/or continuing employment with the Company, you agree to the terms of this Policy and Agreement.” Plaintiff has refused to submit to arb...

Excerpt: ..., the summons and complaint were not served within 3 years from the filing of this case. Plaintiff had ample opportunity to properly obtain an order for publication but failed to timely do so. Case is dismissed pursuant to CCP §583.210 et seq.” After plaintiff orally argued the matter on August 9, 2018, the court adopted the tentative ruling as its order and ordered the case dismissed. The formal order granting defendants' motion was signed on...

Excerpt: ...ourth causes of action for negligence and violation of Business & Professions Code section 17200 are overruled. The unopposed requests for judicial notice are granted. (Evid. Code § 452.) I. Background In 2005, Plaintiffs Amir Shenas and Azadeh Vaezizadeh refinanced a property located at 4071 Lilac Ridge Rd. in San Ramon. Defendant Bank of New York is the current beneficiary of the loan. Defendant Bayview Loan Servicing, LLC services the loan. D...

Excerpt: ...5.16 provides that “any cause of action against a person arising from any act. . . in furtherance of the person's right to petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE...

Excerpt: ...d by Defendant DeVries. Plaintiffs is suing the State of California, Department of Transportation (“Caltrans”) for (1) premises liability ‐ dangerous condition of public property per Government Code section 835 and (2) general negligence. Caltrans has demurred to the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/29/18 ‐ 14 ‐ second cause of action. In that cause of action, Plaintiff alleges that Caltra...

Excerpt: ...ond Amended Complaint (“ASAC”) filed on October 19, 2018. Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiff's counsel for approval as to form. Despite the serious concerns expressed in the Court's interim ruling of October 25, 2018, and in Part A‐3 of this ruling below, the Court exercises its discretion not to award monetary sancti...

Excerpt: ... in an employment matter against Respondent's employer. Their attorney‐client hourly fee agreement (the “Fee Agreement”) contains an arbitration clause providing for arbitration of any dispute between the parties. (Decl. of Janis E. Eggleston, filed 8/31/18, attached as “Exhibit A,” Attorney‐Client Hourly Fee Agreement, at p. 8 ¶ 25.) Specifically, paragraph 25 (a) of the Fee Agreement provides for arbitration of fee disputes. JAMS A...

Excerpt: ...of action) are stricken. Courts use a two‐step process for determining whether an action or claims(s) is a SLAPP suit subject to a special motion to strike. Plaintiffs' claims must (1) arise out of Defendants' protected speech and (2) must lack even minimal merit. See Navallier v. Sletten (2002) 29 Cal.4th 82, 88‐89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. The court first determines whether Plaintiffs' claims arise out o...

Excerpt: ...(Welfare & Inst. Code § 15610.30) and (2) Deed Reformation (Civil Code § 3399). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/08/18 ‐ 15 ‐ This motion came on previously for hearing on October 10, 2018. At that time, Plaintiff objected to the Reply evidence filed by Defendant. The Court permitted both parties to file supplemental briefs by October 24, 2018. The hearing on the motion was continued to Novemb...

Excerpt: ...is a small Brentwood auto dealership. Defendant Carl Watkins is its President/CEO. (UMF 1.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/08/18 ‐ 8 ‐ Plaintiff Muranishi had his own auto dealership in Livermore, called EMotors. In April 2013, he asked Watkins for permission to sell 21 of his cars off Brentwood Motorsports' lot because his lot failed. (UMF 2.) Watkins agreed. Thereafter, Brentwood Motorsports...

Excerpt: ...'s six causes of action, pursuant to CCP § 437c(f). Defendant Robert Half, International's Motion for Summary Judgment is denied. Defendant failed to establish there are no triable issues of material fact as to each of Plaintiff's six causes of action. Defendant's Motion for Summary Adjudication is granted in part and denied in part. Background Plaintiff Sandra Fabian was a contracted employee to Defendant Robert Half International. Plaintiff be...

Excerpt: ... that the property Alamo leased from Diablo did not conform to the promised specifications. Emo‐Gizella Hites and George Hites (“the Hites”) originally leased the property to Alamo, and Diablo is the successor in interest to the Hites. The demurrer is overruled. Diablo asserts that each of Alamo's causes of action fail to state facts sufficient to constitute a cause of action because the lease agreement stated that the property would be lea...

Excerpt: ...ks to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional Interference with Economic Interest; and 4) Unfair Business Practices. For the reasons stated below, the Motion is granted. The Court notes that Defendant is not the only defendant in this matter, and this ruling does not preclude Plaintiffs' alleged causes of action as to the other de...

Excerpt: ...ion of the trial court.” (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746‐ 747.) The California court has discretion to stay the state proceedings in favor of the federal action. (Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804.) According to Caiafa, the court should “consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly ...

Excerpt: ...he Petitioner as permitted by PRC §21167.6(b)(2). “(W)e have been cited no authority, nor are we aware of any, indicating labor costs to review a petitioner‐prepared record of proceedings “for completeness” in connection with certification CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/14/18 ‐ 15 ‐ pursuant to section 21167.6, subdivision (b)(1), are recoverable record preparation costs. This sort of...

Excerpt: ...urrer to be a more appropriate procedural vehicle for deciding that purely legal question. If the Court were to deny an injunction based on its preliminary assessment of how it might rule on a demurrer, the Court would be transforming this OSC hearing into what would functionally be a dispositive motion. The Court finds that plaintiff has a low likelihood of prevailing on the merits, based on the legal arguments set forth in defendants' oppositio...

Excerpt: ...c).) Plaintiff moves for “summary judgment” of the Second Cause of Action for Non‐Payment of Overtime Hours on Final Paycheck on the ground there are no genuine issues of material Plaintiff argues he has established the elements of his claim and there is no defense thereto. Defendants oppose the motion on the ground Plaintiff cannot carry his burden of persuasion and the motion should be denied. Defendants argue the evidence shows Plaintiff...

Excerpt: ... reasons stated below the Motion is granted. By way of the Motion, Plaintiff seeks leave to file a first amended complaint (“FAC”) that contains all four of the causes of action in the original complaint, and adds a fifth cause of action for Failure to Hire under Government Code section 12940(a). Plaintiff's original complaint alleges that Defendants fired Plaintiff due to Plaintiff's sexual orientation as a homosexual man. The proposed FAC k...

Excerpt: ...laintiff did not oppose the motion, and so it was granted. The Court signed an order dismissing this action on April 25, 2018. Plaintiff now moves to set aside the April 25, 2018 dismissal order, citing CCP section 473(b). Plaintiff's counsel says that he did not oppose the 583.420 motion because he “assumed it would be denied.” It appears his assumption was based at least in part on the fact that on March 6, 2018 (after the 583.420 motion wa...

Excerpt: ...ly 16, 2018 is vacated. The motion is granted to the extent set forth below. Regarding the scope of any stay, plaintiff has stated she only wants to complete the discovery already served that is the subject of the discovery motions also on calendar for today's hearing, June 14, 2018, and any discovery that has already been noticed. (See Opp. at 3:9‐10.) The court grants the first request, but denies the second. This matter is stayed except for ...

Excerpt: ...ird, Fourth, Fifth, Sixth, and Seventh Causes of Action and without leave to amend as to the Second Cause of Action. Stuber shall file and serve any Second Amended Cross‐Complaint on or before June 14, 2018. A. Factual Background. The FACC alleges the following pertinent facts. Mandio is a contractor. (FACC, ¶ 4.) He owned and remodeled 138 Arizona Avenue in Richmond, California (the “Property”). (¶ 2, 5.) He did some of the remodeling de...

Excerpt: ...sufficiency of the allegations in the complaint. It raises issues of law, not fact. (Lewis v. Safeway, Inc. (2015) 235 CA4th 385, 388.) “In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) Plaintiff Zion Yuzon, a student at Diablo Valley Community College, was injured on the campus quad area on...

Excerpt: ...dgment, the defendant has the burden of proof in showing that the affirmative defense of primary assumption of risk applies. “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff's primary assumption of the risk by demonstrating that the defendant CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/31/18 11 owed no lega...

Excerpt: ...on any other question until the motion has been determined. Moore v. Powell (1977) 70 Cal.App.3d 583, 587; Adams v. Super. Ct. (1964) 226 Cal.App.2d 365, 368. Aside from certain exceptions provided for in CCP sections 396b(c) and 397(e), any order of the court made prior to the determination of a motion to change venue is a nullity. Beard v. Super. Ct. (1940) 39 Cal.App.2d 284, 286. Accordingly, the Court must first decide the motion to change ve...

Excerpt: ...ted action is pending [1] may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or [2] it may consolidate the actions. [Bracketed numbers added.] (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) While Martin‐Bragg and other cases mention consolidation as a theoretical possibility, plaintiff has failed to cite the Court to a decision where this was in fact the chosen remedy. There are two o...

Excerpt: ...f Civil Code § 2923.7; (4) violation of Civil Code § 2923.12; (5) violation of Civil Code § 2937; and (6) unfair business practices. Defendant demurs pursuant to Code of Civil Proc. § 430.10(e) and (f) on several grounds. For the following reasons, the Demurrer is sustained, with leave to amend. With respect to the second cause of action, Plaintiff may wish to consider whether to amend in light of prevailing authority which holds that “[w]h...

Excerpt: ...‐ Punitive damages are available when a defendant acts with “oppression, fraud or malice” when breaching an obligation owed to a plaintiff. See Civil Code Section 3294(a). Malice includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others.” See Civil Code Section 3294(c)(1). Oppression is defined as “despicable conduct that subjects a person to cruel and u...

Excerpt: ... the Court has considered its contents. For reasons stated below, the Petition is denied. Relevant Factual And Procedural Background Plaintiffs are former employees of Defendants and on February 1, 2018, Plaintiffs filed their Complaint against Defendants alleging sixteen causes of action such as race and age discrimination, wrongful termination, and non‐payment of wages. Defendants contend that prior to commencement of their employment with De...

Excerpt: ...ch 27, 2018 and the hearing was set for May 10, 2018. Defendant has represented in his reply that the court clerk set the hearing date for this motion, which is the common practices of our court clerks. In addition, even if Defendant had requested the May 10, 2018 date the Court can still decide the merits of the motion. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296.) Plaintiff has sued “Defendant, JASON KRISTAL, c/o REDWO...

Excerpt: ...ther nurses in the same or similar locality and under similar circumstances (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215) and (2) Antioch has shown that it was not responsible for causing Plaintiff's injury (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132). Both grounds are highly disputed. STANDARD OF CARE Both parties have produced expert nursing witnesses on this issue. Antioch relies on the expert declaration of Julie Baird, ...

Excerpt: ...been received and that the judgment is subject to amendment to add such costs once they have been approved by the court. This would occur by operation of law if no motion to tax costs was timely filed by Plaintiff or after order of the court following the hearing on a motion to tax costs. Here a motion to tax costs was timely filed. Defendant prematurely filed his memorandum of costs prior to service of the notice of entry of judgment. Plaintiff ...

Excerpt: ...uant to Code of Civil Procedure § 437c. The MSA relates to five of the thirty causes of action of Plaintiff David Wong, M.D. (“Dr. Wong”) and Plaintiff San Ramon Endoscopy Center, Inc. (“SREC”) (collectively, “Plaintiffs”)'s Third Amended Complaint (“TAC”). For the following reasons, the MSA is granted‐in‐part and denied‐in‐part. A motion for summary adjudication may be granted only if it “completely disposes of a cause...

Excerpt: ...A COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/10/18 ‐ 24 ‐ Here, by verified petition and declarations, Petitioners allege a demand was made to inspect and copy the records of Respondent, The Sikh Center of the San Francisco Bay Area, “for a purpose reasonably related to such person's interest as members.” By way of letter in December 2017, Petitioners requested from Respondent Lally, in her capacity as presi...

Excerpt: ...ny further amended complaint on or before June 7, 2018, and shall comply with the conditions on leave to amend set forth below. The basis for this ruling is as follows. A. The Entire FAC. 1. Tender. Defendants demur to the entire FAC on the ground that plaintiff has failed to tender the amount of the underlying indebtedness. This argument lacks merit, because the First through the Fifth Causes of Action seek only monetary relief. The Court will a...

Excerpt: ...eeks to add more details regarding the claim for indemnity and to add a new cause of action. Plaintiff/Cross‐Defendant Olson opposes the motion on the ground the amended crosscomplaint is a sham pleading. Ms. Olson argues that in the proposed FACC, SBJLG seeks to omit and contradict harmful facts pleaded in the original cross‐complaint. Olson claims that there has been no mistake and that SBJLG has not provided sufficient excuse or explanatio...

Excerpt: ...ersonal knowledge of issues surrounding FAIR Plan's decision to modify its policy language in 2017. There was no substantial justification for Ms. Salat‐Kolm's counsel to unilaterally terminate her deposition. As a result, the court is required to award sanctions pursuant to CCP §2025.480. The amount of the sanctions will be set at the hearing upon presentation of an updated cost and expense declaration from the moving party. Counsel shall be ...

Excerpt: ...y plaintiff Tekforce Corporation (“Plaintiff”). For reasons stated below, the Motion is granted. Relevant Factual and Procedural Background This is a collection case where both parties are corporations. Plaintiff filed its Complaint on October 31, 2016. On January 11, 2017, January 19, 2017, and January 25, 2017, and March 2, 2017, Plaintiff attempted to personally serve Defendant through its agent designated for service of process, Reddy Mar...

Excerpt: ...son was admitted to Defendant San Pablo Healthcare & Wellness Center (“Facility”), a 24‐ hour skilled nursing facility on July 9, 2016. Plaintiff alleges Defendant Sol Healthcare, LLC and Defendant SR Capital, LLC were the owners, operators, parent company, and/or management company of the Facility. Plaintiff Lionel Johnson signed an Arbitration Agreement on July 11, 2016. Provisions 1.1 and 1.2 of the Agreement encompasses all disputes “...

Excerpt: ...r. Gordon and his Trust”). For reasons stated below, the Motion to Strike is granted, the Demurrer is overruled, and the MJOP is denied in part, and granted in part. Relevant Factual And Procedural Background This is a personal injury‐premises liability case. Plaintiff, Konstantinos Sakellariou (“Plaintiff”), alleges that he was injured at a property owned, operated, and maintained by the defendants in this matter. The following facts wer...

Excerpt: ...'s parents“ refused to have their son apologize or take responsibility for a dreadful decision.” (2) The portion of the Instagram post where Defendant stated that N.Y.'s parents “refused to have their son apologize/take responsibility for a poor decision.” All other alleged defamatory statements are stricken from the complaint. Legal Standard “Resolution of an anti‐SLAPP motion [or special motion to strike] involves two steps. First, ...

Excerpt: ...olving adjudication of complex issues of legal and beneficial title to property.” (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 394.) The Court has denied plaintiffs' motion because this civil action does not involve such issues. The First, Fifth and Sixth Causes of Action are based on alleged irregularities in the service and posting of the notice of trustee's sale. (See Complaint, ¶¶ 29‐31.) Plaintiffs acknowledge in their opening ...

Excerpt: ...a Dang, D.D.S. (“Dr. Dang”) at the time she passed away. Plaintiffs move pursuant to Code of Civil Procedure (“CCP”) section 425.13, which governs the amendment of complaints to include claims for punitive damages against health care providers: In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court ent...

Excerpt: ...y false and/or intentionally misleading fact allegations relating to Plaintiff's failure to exhaust his administrative remedies.” (Def. Memo of P & A, 2:5‐6.) Defendants contend the complaint falsely alleges that Plaintiff exhausted his administrative remedies necessary to maintain a FEHA claim. “‘Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH.' [Citation.] Exha...

Excerpt: ...n it, examined the allegations of the FAC, not the allegations of the original complaint. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/19/18 ‐ 9 ‐ Second Cause of Action, Intentional Misrepresentation: The demurrer to this cause of action is overruled. In challenging this cause of action, defendant cites the rule that fraud must be pleaded specifically and argues the FAC is insufficiently specific in explai...

Excerpt: ...murrer. The Demurrer is opposed (filed as an “Answer” to Defendant's Demurrer) by plaintiffs, in pro per, Greg and Ramona Mayon (collectively “Plaintiffs”). Defendant replied. For the reasons stated below, Defendant's Demurrer is overruled. Defendant shall file an answer on or before April 27, 2018. Brief Factual and Procedural Background Defendant is the landlord and owner of the mobilehome park where Plaintiffs reside. Generally, Plaint...

Excerpt: ...t, rule 3.1110, subd. (f); Local 3.42, subd. (3).) Plaintiffs' attorneys, who practice in the law firm CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 13 ‐ JT Legal Group, APC, are hereby admonished that future failures to tab exhibits in this or other cases may result in an award of monetary sanctions, the disregard of non‐conforming documents, or both. 1. Irreparable Harm. In February 2018, defenda...

Excerpt: ...stee's sale, and the Ninth Cause of Action, for quiet title. These causes of action lack merit because plaintiff has failed to allege a tender of the sums due under the subject note and deed of trust, and has failed to allege facts showing a valid exception to the rule requiring CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 12 ‐ tender. (See, Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439 [the ten...

Excerpt: ...er Decl., ¶ 21 a, b, d, e, f; Pltf's Ex. 10, p. 151.) Telecare argues it is entitled to summary judgment for three reasons: (1) plaintiff's action against it is barred by the statute of limitations; (2) plaintiff cannot establish it was negligent; and (3) plaintiff cannot establish that any negligence by Telecare caused her injuries. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 4 ‐ 1. Statute of li...

Excerpt: ... may “deny leave when the proposed amendment or amended pleading is insufficient to state a cause of action or defense.” (Congleton v. Nat'l Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 62.) The Court notes a trial date of July 16, 2018, continued upon stipulation of the parties from November 22, 2017. While this motion for leave to amend is not brought on the “eve” of trial, discovery has been closed. The City also has a pending mot...

Excerpt: ...est the granting of Plaintiffs' motion then that party should follow the normal rules for contesting a tentative ruling. Although not raised by the parties, the Court notes that the moving party on this motion failed to comply with all the requirements in California Rules of Court, Rule 3.1324. The parties should comply with this rule, as well as all Rules of Court, at all times. There is “a policy of great liberality in permitting amendments t...

Excerpt: ...e of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a crosscomplaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross‐complaint...

Excerpt: ...use plaintiff has dismissed this lawsuit with prejudice. Plaintiff argues that the lis pendens should not be expunged because the case needs to be reactivated due to defendant's breach of some unspecified stipulation. In pertinent part, Code of Civil Procedure section 405.30 provides as follows: “At any time after notice of pendency of action has been recorded, any party . . . may apply to the court in which the action is pending to expunge the...

Excerpt: ...et aside its order that cause existed to for dismissing Petitioner, that Petitioner's disability was not a convincing defense against the charges and that the prior discipline laid a solid foundation for dismissal. The Court has reviewed the petition, the administrative record, Bacon's declaration in support of the petition, as well as, the parties memoranda for and against granting the petition. For the reasons explained below, the petition for ...

Excerpt: ...C”) appears to meet the definition in Article XIII, Section 3, which requires vessels of more than 50 tons' burden. That is alleged. (SAC, paragraph 12) Article XIII, Section 3 also requires that the vessels be “engaged in the transportation of freight or passengers.” That is also alleged, as the courts have interpreted that phrase. The phrase has been interpreted to mean that a vessel must be carrying goods that someone is paying to be tra...

Excerpt: ...ame parties bars Plaintiff's complaint and (2) Plaintiff's complaint is uncertain. In Defendant's memorandum of points and authorities Defendant also argues that Plaintiff's claim fails to state a cause of action. That ground was not included in the demurrer and will not be considered by the Court at this time. Res Judicata Defendant argues that Plaintiff's complaint is barred by res judicata because there was a final judgment on the merits in a ...

Excerpt: ...Code section 13559, which states, in part, as follows: [Following] an order of suspension or revocation of the person's privilege to operate a motor vehicle after the hearing pursuant to Section 13558, the person may file a petition for review of the order in the court of competent jurisdiction in the person's county of residence. . . .The review shall be on the record of the hearing and the court shall not consider other evidence. If the court f...

Excerpt: ...pplicable to public entities. See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132. The first and second causes of action are both negligence claims pled against Doe Defendants. On the dangerous condition of public property claim, the City moves for summary judgment on four (4) grounds: (1) Plaintiff has no evidence that the City of Antioch created the dangero...

Excerpt: ...l” HBOR violation; despite any frustration plaintiff may have experienced in dealing with multiple loan officers, plaintiff did succeed in having a series of applications for a loan modification considered by defendant. Also, plaintiff improperly conflates the procedural requirements of HBOR with the substantive decision of whether to offer plaintiff a loan modification; denying an application for a loan application based on a rationale that th...

Excerpt: ...ts ought to be stricken, because the Court is without authority to issue a writ directing any relief to such unidentified general assistance recipients. Third, the County contends that portions of the prayer for relief ought to be stricken, tracking the arguments made above. Sixth Cause of Action The motion is denied as to the sixth cause of action. If the County wished to argue that the entire sixth cause of action is legally defective, the appr...

Excerpt: ...Edgardo Bejarano and plaintiff David Marks (collectively “Plaintiffs”). Defendants have filed a reply. For reasons stated below, the Motion is granted. Relevant Factual and Procedural Background This is a personal injury case involving a motor vehicle collision. Plaintiffs were both riding a single bicycle when they were struck by a vehicle owned by defendant Claudio Escoto and driven by defendant Adrianna Escoto. It is undisputed that Plaint...

Excerpt: ...e effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. Yet, the release need not achieve perfection. See Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755. The determination of whether a release contains ambiguities is a matter of contractual construction. See Paralift, supra, 23 Cal.App.4th at 754‐ 755. An ambiguity exists when a party can identify an alternative,...

Excerpt: ...Court cannot conclude that collateral estoppel applies as a matter of law. As a result, the MSJ is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/29/18 ‐ 6 ‐ Brief Background This case arises out of a landlord‐tenant relationship between two of the plaintiffs, Olga Chan and Feliciano Puerto, and the moving defendant, Sekk Investments. Chan and Puerto were tenants at a property in Concord. In the fal...

Excerpt: ... per se. The Court understands this to mean that Plaintiff dismisses the fourth cause of action as that cause of action appears to based solely on a negligence per se argument. Without the fourth cause of action, the Antioch Defendant is only sued in cause of action three. Therefore, this Court must decide whether summary judgment is appropriate based solely on cause of action three. Defendant argues that the assumption of risk defense applies. A...

Excerpt: ....12; (4) negligence; and (5) violation of Cal. Bus. & Prof. Code § 17200. On January 23, 2018, Plaintiff filed an Ex Parte Application for Temporary Restraining Order. The Court heard the Ex Parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. The OSC was originally set for February 22, 2018. The parties stipulated ...

Excerpt: ...int which allege that defendants have been sued repeatedly for elder abuse caused by understaffing and lack of staff training, have received repeated Statements of Deficiencies from the California Department of Public Health (the “Department”) regarding similar concerns, and have been repeatedly cited by the Department regarding similar concerns. To obtain enhanced remedies in an elder abuse action, the plaintiff must prove a pattern of reckl...

Excerpt: ... per se. The Court understands this to mean that Plaintiff dismisses the fourth cause of action as that cause of action appears to based solely on a negligence per se argument. Without the fourth cause of action, the Antioch Defendant is only sued in cause of action three. Therefore, this Court must decide whether summary judgment is appropriate based solely on cause of action three. Defendant argues that the assumption of risk defense applies. A...

Excerpt: ...nd obvious. Dangerous Condition To prevail on her dangerous condition cause of action, Government Code § 835, the relevant jury instruction, and prevailing authority require Grilho to prove each of the following: 1. That BART owned or controlled the property; 2. That the property was in a dangerous condition at the time of the incident; 3. That the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; 4. ...

Excerpt: ...on 430.10, subdivision (f), and the complaint fails to plead the facts with particularity as required in causes of action involving fraud. Pleading Standard for Fraud Actions Fraud actions are subject to a stricter pleading standard and allegations of fraud must be pleaded with particularity. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) (disapproved on other grounds.) The legal conclusion of �...

Excerpt: ... served as Levandowski's transactional attorney for roughly a decade and took part in many of the transactions that underlie Google's claims against Levandowski. Gardner filed a motion to quash the subpoena arguing that depositions of opposing counsel are presumptively invalid. The arbitration panel ultimately denied the motion. Standard of Review The Court first addresses the appropriate standard of review. Google contends that under Bak v. MCL ...

Excerpt: ...on Service (“Northern”). The motion is denied because a genuine issue of material fact exists regarding the amount Lyon owes on the policy. In relevant part, the policy agreement between SCIF and Lyon provides as follows: “E. The premium shown on the Declarations, schedules and endorsement is an estimate. The final premium will be determined after this policy ends by using the actual premium basis and the proper classifications, rates and r...

Excerpt: ...n Rodriguez was asked to address the following issue of statutory construction: whether Section 473(b)'s requirement that the “application for relief” be “in proper form” means verified discovery responses must be served with a motion for mandatory relief from a terminating sanction when that sanction was based on failure to respond to discovery. The Court answered, yes. An application for relief from a terminating discovery sanction is �...

Excerpt: ...d Parties”). The demurrer is opposed by cross‐complainant Cherokee Simeon Venture I, LLC (“CSV”). The requests for judicial notice are granted. The demurrer is overruled. The Cherokee Fund Parties shall file an answer on or before March 16, 2018. The Court finds that the two causes of action stated against the Cherokee Fund Parties are not barred by res judicata. (See, Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 7.) Also,...

Excerpt: ... alleges that defendant “negligently . . . continued to apply vacuum extraction (VE) . . . . after three failed attempts; continued to apply VE for more than 10 minutes; used forceps after multiple failed VE attempts; failed to follow protocol regarding the use of VE and use of forceps; failed to perform CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/01/18 ‐ 5 ‐ an episiotomy; failed to adequately monitor t...

Excerpt: ... by matters that can be judicially noticed. [Citations.] [Citation.]' [Citation.]” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/01/18 ‐ 2 ‐ This action arises out of a motor vehicle accident that occurred on or about May 25, 2014. Plaintiff Andrew Mark Robinson was injured when his ...

Excerpt: ...ovision in the Isadore contract did not apply to Constanza. In order to be entitled to an award of fees, the party claiming a right to such an award must “establish that the opposing party actually would have been entitled to receive them if he or she had been the prevailing party.” Leach v. Home Savings & Loan (1986) 185 Cal.App.3d 1295, 1307. See also Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC. (2008) 162 Cal. App. 4th 858. ...

Excerpt: ...nguage. Further, the opposing parties have not demonstrated prejudice. Travelers filed and served a notice of lien almost 11 months ago, on March 30, 2017. The need to litigate or compromise this lien was obvious long before plaintiff and defendants entered into their settlement agreement. Also, the opposing parties do not explain why litigating the lien in a separate action would somehow be more efficient than litigating the lien in this action....

Excerpt: ... District, after counsels met and conferred pursuant to CCP § 430.41, only the first cause of action for Dangerous Condition of Public Property is subject to the demurrer. Standard of Review The role of demurrer is to test the legal sufficiency of the allegations in the complaint. It raises issues of law, not fact. (Lewis v. Safeway, Inc. (2015) 235 CA4th 385, 388.) “In passing upon the sufficiency of a pleading, its allegations must be libera...

Excerpt: ... alternatively adjudication on April 28, 2017. As part of their motion, Defendants submitted two surveys that showed where the relevant easements were located. (See Humann Decl. and Chapman Decl., filed April 28, 2017.) Plaintiff filed his opposition to this motion on July 13, 2017. Plaintiff did not include a survey of the relevant easements, and instead explained that, “I have not yet obtained a survey as I was waiting to obtain the basic inf...

Excerpt: ...o a party's motion). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/15/18 ‐ 2 ‐ Here, moving party fails to identify any new fact, law, or circumstance that would permit the Court to reconsider its prior orders. As a result, the Court is without jurisdiction to hear the Motion, and it is therefore denied. ...

Excerpt: ...2) violation of Civil Code § 2923.6: dual tracking; (3) wrongful foreclosure; (4) promissory estoppel; (5) promissory fraud; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) negligence & negligence per se; (9) violations of Civil Code § 1788 et seq.: The Rosenthal Fair Debt Collection Practices Act; and (10) violations of Business & Professions Code § 17200, et seq.: Fraudulent, Unlawful, and Unfair Business Practices. D...

Excerpt: ...ted” between the parties. (Cmplt, paragraph 18) Defendant Orinda Academy contends that Plaintiff's employment was “at will,” since the employee handbook was changed in August 2015 and all employees so advised of the change to “at will” employment by the new employee handbook. (Cmplt, paragraph 10) An employee CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/15/18 ‐ 11 ‐ claiming employment is not “a...

Excerpt: ...ued discovery subpoenas that intrude into the protected private sphere of Plaintiff and her children. Specifically, the Motion seeks to quash subpoenas issued by Defendants on the Employment Development Department (“EDD”), the financial aid departments of UC Berkeley and CSU San Diego, Covered California, and California's Department of Health Care Services. For reasons explained below, the Motion is granted. Legal Standard Code of Civil Proce...

Excerpt: ...Lincoln Prop. Co., N.C., Inc. v. Travelers Indem. Co. (2006) 137 Cal.App.4th 905, 916. Further, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” Kittredge Sports Co. v. Super. Ct. (1989) 213 Cal.App.3d 1045, 1048. The opposition argues that the proposed first amended cross‐complaint (“1ACC”) is a sham pleading. It generally avers that this is so because the 1AC...

Excerpt: ...fendants' request for judicial notice is granted in part. The Court takes judicial notice of Exhibits “B” through “F”, documents on file in this action. The Court does not take judicial notice of Exhibit “A”, because the subject building permit is not dispositive of any cause of action. 1st and 2nd C/As (Fraud). The motion is granted without leave to amend as to the First and Second Causes of Action for fraud and deceit. Plaintiffs ha...

Excerpt: ...ice, and on any terms as may be proper, allow a party to amend any pleading… ” (CCP § 473(a)(1).) While judicial policy favors resolution of all disputed matters between the parties, the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/01/18 ‐ 2 ‐ court finds the public nuisance cause of action fails to state a cause of action as it is timebarred. “Ordinarily, the judge will not consider the validity of ...

Excerpt: ...e claims alleged against Defendants are real property claims. The Court's ruling on the real property claim issue is included in this ruling for completeness. The Court continued the hearing to allow supplemental briefing on whether or not Plaintiffs have met their burden by showing its claims have probable validity. (See Code of Civil Procedure § 405.30, 405.32.) Code of Civil Procedure § 405.30 allows a property owner to file a motion to remo...

Excerpt: ...d Omissions policy to insure itself for any liability arising out of the performance of processing and facilitating payroll taxes for its clients. (¶ 10.) Defendant Scottsdale issued Affordable a “Business and Management Indemnity Policy.” (¶ 12.) It issued a renewal policy on identical terms a year later, but the following year issued another “renewal” with a broader Endorsement 8 set of exclusions. (¶ 12‐15.) On May 10, 2013, the A...